Delhi High Court
Shriram General Insurance Co.Ltd vs Bhupender @Bhupender Kumar & Ors on 25 May, 2016
$~16 & 17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 25.05.2016
+ MAC.APP. 1081/2014
SHRIRAM GENERAL INSURANCE CO.LTD ..... Appellant
Through Mr. Sameer Nandwani, Adv.
versus
BHUPENDER @BHUPENDER KUMAR & ORS ..... Respondent
Through Mr. Ghanshyam Thakur, Adv. for R-1
&2
+ MAC.APP. 1083/2014
SHRIRAM GENERAL INSURACE CO.LTD ..... Appellant
Through Mr. Sameer Nandwani, Adv.
versus
RAJESH KUMAR & ORS ..... Respondent
Through Mr. Ghanshyam Thakur, Adv. for R-1
&2
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Satyam @ Satyam Kumar (born on 26.10.1997) and Preet Kumar @
Kalu (born on 11.07.1997) were riding motorcycle bearing registration
No.DL 4S AD 3273 (the motorcycle), the former driving and the latter on
the pillion, on 19.11.2012 at about 12 noon time when their vehicle was
involved in a collision against Tata 407 truck bearing registration No.HR 38
J 7986 (the truck), admittedly insured against third party risk with the
appellant insurance company for the period in question. Both boys, aged
about 15 years at that point of time died consequent upon the injuries
suffered in the process. Their respective parents, first and second
respondents (claimants) in both these appeals, instituted accident claim cases
(case Nos.173/12 and 282/13) seeking compensation under Sections 166 &
140 of Motor Vehicles Act, 1988 (MV Act), on 02.03.2013. In the said
proceedings the appellant insurance company was impleaded as one of the
respondents, in addition to driver and owner of the truck on the averments
that the accident had been caused due to negligent driving by Ram Gyan
Mehto (third respondent in these appeals).
2. The tribunal clubbed the two cases and held an inquiry and, on that
basis, by judgment dated 24.09.2014, upheld the case of deaths having
occurred due to negligent driving of the truck. This finding has since
attained finality as it was not challenged further. The tribunal awarded
compensation in the sum of `12,26,400/- in each case directing the
insurance company to pay with interest at 9% per annum. For calculating
the compensation, the tribunal assumed the potential income of the deceased
boys at `10,800/- per month, deducted 50% towards personal & living
expenses and applied the multiplier of 18. It further added `25,000/- each
towards loss of love & affection and funeral charges besides `10,000/-
towards loss of estate.
3. While contesting the two cases, the insurance company had argued
that both the deceased persons were minor (15 years in age) and were
themselves guilty of contributory negligence inasmuch as they could not
have been conceivably holding driving license which fact, even otherwise,
was admitted during the inquiry by the respective claimants. This plea was
rejected by the tribunal referring to the view taken by the Supreme Court in
National Insurance Company V. Swaran Singh 2004 ACJ 1 and observing
that the victims were third parties and, therefore, such defence could not be
taken.
4. The insurer is in appeal in both the cases questioning the computation
of compensation and also reiterating its plea about contributory negligence.
5. These cases involved claims for compensation on account of death of
children. By judgment pronounced on 13.05.2016 in a batch of similarly
placed other appeals led by MAC.APP.554/2010, Chetan Malhotra v. Lala
Ram, this Court held as under :
"Subject to all other requisite conditions being fulfilled, for the
foregoing reasons, in order to bring about consistency and uniformity
in approach to the issue, it is held that claims for compensation on
account of death of children shall be determined as follows :
(i). Till such time as the law is amended by the
legislature, or the Central Government notifies the
amendment to the Second Schedule in exercise of the
enabling power vested in it by Section 163-A (3) of the
Motor Vehicles Act, 1988, and except in cases wherein the
prospects of employability and earnings (in future or
present) of the deceased child are proved by cogent and
irrefutable evidence, this having regard, inter alia, to the
academic record or training in special talents or skills, for
computing the pecuniary damages on account of the loss
to estate, the notional income of non-earning persons
(`15000/- p.a.) as specified in the Second Schedule
(brought in force from 14.11.1994), shall be assumed to
be the income of the deceased child, and taken into
account after it is inflation-corrected with the help of Cost
Inflation Index (CII) as notified by the Government of
India from year to year under Section 48 of the Income
Tax Act, 1961, by applying the formula indicated
hereinafter.
(ii) For inflation-correction, the financial year of 1997-
1998 shall be treated as the "base year" and the value of
the notional income relevant to the date of cause of action
shall be computed in the following manner :-
` 15,000/- x A ÷331
[wherein the figure of „`15,000/-‟ represents
the notional income specified in the second
schedule requiring inflation-correction; „A‟
represents the CII for the financial year in
which the cause of action arose (i.e. the
accident / death occurred); and the figure of
„331‟ represents the CII for the „base year‟]
(iii). After arriving at an appropriate figure of the
present equivalent value of the notional income (i.e.
inflation-corrected amount), it shall be rounded off to a
figure in next thousands of rupees.
(iv). The amount of notional income thus calculated shall
be reduced to two-third, the deduction to the extent of one-
third being towards personal & living expenses of the
deceased, the balance taken as the annual loss to estate
(hereinafter also referred to as "the multiplicand").
(v). For assessment of the pecuniary damages on
account of the death of children upto the age of 10 years,
the loss to estate shall be calculated, capitalizing the
multiplicand, by applying the multiplier of ten (10).
(vi). For children of the age-group of more than 10 years
upto 15 years, the loss to estate shall be calculated by
applying the multiplier of fifteen (15).
(vii). For children of the age-group of more than 15 years
but less than 18 years, the loss to estate shall be
calculated by applying the multiplier of eighteen (18).
(viii). After the pecuniary loss to estate has been worked
out in the manner indicated above, an amount equivalent
to the amount thus computed shall be added to it as the
composite non-pecuniary damages taking care of not only
the conventional heads but also towards future prospects
as awarded in R.K. Malik v. Kiran Pal (2009) 14 SCC 1.
(ix). The final sum thus arrived at, appropriately
rounded off, if so required to the nearest (if not next)
thousands of rupees, shall be awarded as compensation
for the death of the child."
6. Since the deaths had occurred on 19.11.2012, the CII for financial
year 2012-13 (i.e. 852) would apply. Since the date of birth of the two boys
was proved to be 26.10.1997 and 11.07.1997, both had crossed the age of 15
years, and thus, the multiplier of 18 would apply.
7. The inflation corrected notional income, thus, comes to (15,000 x 852
÷ 331) `38,610/- rounded off to `39,000/- per annum. After deducting 1/3rd
towards personal & living expenses, and applying the multiplier of 18, the
pecuniary loss to estate is calculated as (39,000 x 2 ÷ 3 x 18) `4,68,000/-.
Adding the same amount of money towards composite non-pecuniary
damages, total compensation in each of these cases is calculated as
(4,68,000 x 2) `9,36,000/-.
8. The awards in the two cases are reduced accordingly. They shall,
however, carry interest at the rate of 9% per annum as levied by the tribunal.
9. Bhupender @ Bhupender Kumar (PW2) father/claimant of deceased
Satyam admitted during cross-examination that the deceased was not
holding a valid driving license at the time of accident. He also conceded
that he was aware that the age for issuance of a driving license to drive a
motorcycle is 18 years. Rajesh Kumar (claimant), father of the other child
Preet Kumar appearing as (PW1) made similar admission. He conceded that
his deceased son was driving the motorcycle without holding a valid driving
license and further that he was aware that the age of issuance of license for
plying vehicle is 18 years. The evidence of PW2 shows that Satyam was
riding the pillion. The motorcycle belonged to Bhupender (brother of PW1).
The claimants examined Deepak Kathuria (PW3), an eyewitness to the
appellants, who in the course of his cross-examination further admitted that
both the boys on the motorcycle were not bearing any helmets.
10. The above facts clearly bring out negligence on the part of the two
deceased persons and their receptive parents. It is not a case where a minor
child has strayed on to the road where he was crushed to death by a motor
vehicle driven rashly or negligently. It is a case where teenaged boys were
allowed by their respective parents to be on their own, one driving a
motorcycle and the other riding on the pillion, with full knowledge that they
were not authorized to drive the vehicle or be on the pillion without even the
protection of head gear (helmets) in this manner on the public road. This
court agrees with the submission of the insurance company that the element
of contributory negligence on the part of the deceased persons and their
respective parents has to be factored in. The parents of the two deceased
children being the beneficiaries cannot escape from the effect of
contributory negligence which, in the present case, is assessed to the extent
of 10%. Thus, the insurance company is held liable to pay the above
compensation to the extent of 90% in each case.
11. The awards are modified accordingly.
12. By similar orders passed on 28.11.2014, in both these appeals, the
insurance company had been directed to deposit the awarded amount with
accumulated interest with Registrar General of this Court within the period
specified and, upon such deposit being made, 60% was allowed to be
released, the balance kept in fixed deposit receipts with UCO Bank, Delhi
High Court branch. The Registrar General shall now calculate the amounts
payable in terms of the modified award and release the balance to the
claimants refunding the excess, if any, to the insurance company with
statutory deposit, if made.
13. Both appeals are disposed of in above terms.
(R.K. GAUBA)
JUDGE
MAY 25, 2016
VLD
